"How is this supposed to work?"Johnson added. "I don't understand how the implementation of this ruling is going to work. Just the process of separating out what's an official act, what's a quasi-official act, what is a non-official act. In the court will be a trial in and of itself, then an appeal following that. This is a real setback."
Johnson explained that the chain of command in the executive branch is currently set up so each official can be individually held accountable, but he said the court's ruling upends that arrangement.
"When the executive branch is functioning like it should, you have a legally controversial action, such as [a] counterterrorism action," Johnson said. "The action works its way up through the chain of command. Every person in the chain of command has a lawyer, it's signed off by the general counsel of the Department of Defense, the general counsel of the CIA, the office of the department of the legal counsel. By the time it gets to the lawyer, everyone has signed off on it. Therefore, the president is acting consistent with law. There are built-in safeguards for that."
"It is only because, now, 235 years in, we have a past and possibly future president who engages in criminal conduct that we have to have this debate," Johnson added. "At least five justices on the Supreme Court feel the need to try to protect him. This is, to me, an unbelievable decision. In my view, it is a setback to our constitutional order."
The majority thinks they’ve been excessively clever. Like the favorite abortion carveout for “the life of the mother” really meant to make abortion impossible, think they’ve provided “absolute immunity” without ever calling it that. But that’s clearly the point of the drill: I cite that for the quote of footnote 3:
What the prosecutor may not do, however, is admit testimony or private records of the President or his advisers probing the official act itself. Allowing that sort of evidence would invite the jury to inspect the President's motivations for his official
actions and to second-guess their propriety.
Which inspection is improper because droit de seigneur and sovereign immunity. But when kings made the law, an order of assassination was per se legal. Now it still just an illegal order, for everybody but the king:
"First of all, from the perspective of a cabinet officer, how is this supposed to work?" Johnson said. "Suppose the president says to the secretary of homeland security, 'I am ordering you to order the border patrol to go shoot at migrants swimming across the Rio Grande.' The cabinet official would rightly say, 'Well, you have immunity, but I don't — you go do it yourself. I'm not telling the border patrol to do that.'"
So the POTUS is going to reach down to the border patrol agent on the ground and, what, offer him a pardon for committing murder? It’s a child’s version of government, not unlike children who imagine their body is a solid mass rather than a network of blood vessels and nerves and lymph and a collection of organs and muscles and bones. The body literally doesn’t work like that. The government literally doesn’t work like that. The presidency literally doesn’t work like this opinion imagines it does.
Or worse, the majority doesn’t care how it works. They just want to protect Trump at all costs; just like “life of the mother” exceptions aren’t meant to allow abortions, but just appear to. This ruling is not meant “for the ages,” it’s just meant to appear to. It’s not meant to give any guidance to lower courts. It’s just meant to get Trump as far past the election as possible, without further legal interference. As a legal ruling it’s absolutely unworkable. The people in the chain of command can be paralyzed between an illegal order and a legal system that doesn’t give them immunity.
“When the president does it, it is not illegal,” is a Nixonian locution worthy of Trump. A lot of people went to jail for Watergate, for doing what the President wanted done. A lot of people would have gone to jail for Iran-Contra if Poppy hadn’t pardoned them (and himself). When the president does it, it may not be illegal as to the president. But that doesn’t let the rest of government off the hook.
This ruling doesn’t let the government ignore the law anymore than abortion exceptions “for the life of the mother” create humane exceptions to a draconian law. Both just sow chaos; one to control women as fully as possible, the other to protect a particular individual as fully as possible.
Neither, in the legal system as currently constituted, does anything but create needless problems and sow dragon’s teeth. As the adage goes, what comes after is reaping the whirlwind.
"So the chief [Justice] tried to make the best case possible that this was the only way out ... he stressed that the separation of powers protects the office of the presidency in a way that would certainly prohibit any kind of prosecution for official acts, and he said there has to be that presumption for official acts and you know, he stressed that that fear and that that idea that presidents should not have to hedge in any way."
But that’s precisely the point of the chain of command and 235 years of establishing a legal process within government. What the majority presents is a child’s view of government as a unitary lump of clay rather than a set of complex systems working together to accomplish a goal. Presidents have to “hedge” because governments are creations of law, not emanations if divine will expressed through kings.
Of course even this analysis of Roberts opinion gives it more credit than it deserves. Roberts is not reaching for a legal argument. He’s just trying to protect Trump at all costs. He’s not calling balls and strikes. He’s trying desperately to call the next election. 🗳️
